This
matter comes before the Court on the Defendant's Motion
for New Trial (Doc. No. 107). Plaintiffs responded in
opposition to the motion. (Doc. No. 110). Having considered
the parties' submissions, the Court finds as follows.

A
motion for new trial under Rule 59(a) may be granted
“for any reason for which a new trial has heretofore
been granted in an action at law in federal court....”
Fed.R.Civ.P. 59(a)(1)(A).[1] Such motions, which are committed to
the discretion of the trial court, are not regarded with
favor and are granted only with great caution. Paradigm
Alliance, Inc. v. Celeritas Technologies, LLC, 722
F.Supp.2d 1250, 1258 (D. Kan. 2010). They are generally
granted only “when the court believes the verdict is
against the weight of the evidence, prejudicial error has
occurred, or substantial justice has not been done.”
Feldt v. Kan-Du Const. Corp., No. 12-1064-MLB, 2015
WL 1523905, *2 (D. Kan. Apr. 3, 2015)(quoting Wirtz v.
Kansas Farm Bureau Svcs., Inc., 311 F.Supp.2d 1997, 1226
(D. Kan.2004).

Defendant
raises two challenges to the trial proceedings. He first
contends that the Plaintiffs' use of their peremptory
challenges to remove male jurors from the panel violated
Batson v. Kentucky, 476 U.S. 79 (1986). In
Batson, the Supreme Court held that the Equal
Protection Clause forbids exclusion of a potential juror on
the basis of race. The Court created a three-part test to
determine whether a peremptory strike was impermissible.

First, the defendant must make a prima facie case of
discrimination by presenting evidence supporting an inference
that the prosecutor exercised the peremptory challenge to
exclude a potential juror on the basis of race. If the
defendant makes this showing, the burden shifts to the
prosecution to provide a race-neutral justification for the
strike. If the prosecution does so, the curt must determine
whether purposeful discrimination occurred.

Defendant
did not raise this issue during jury selection or trial, but
contends that he has made a prima facie case at this juncture
because Plaintiffs' counsel eliminated all of the male
jurors. Defendant, however, is incorrect in his assertion
that Plaintiffs utilized all three of their peremptory
challenges to exclude male jurors. Defendant utilized one of
his peremptory challenges to exclude a male potential juror,
Mr. Raines. Plaintiffs utilized two challenges for male
jurors and one for a female juror.[2] Accordingly, the Court finds
that Defendant has failed to make a prima facie showing of
discrimination by Plaintiffs. Moreover, Defendant waived his
right to raise the Batson issue by failing to make
an objection prior to the jury being sworn.

Practically speaking, a Batson challenge is best
handled at the time when the judge and the attorney's
conduct are at issue, especially in a case like this one
where defense counsel asserts that evidence of pretext came
to light after the striker defends against the
Batson challenge but before the jury is empaneled.
See United States v. Hendrix, 509 F.3d 362, 371 (7th
Cir.2007) (finding no error when defendant fails to
“cast doubt” on the government's reasons
“during voir dire”). . . [T]o preserve a
Batson challenge, the best course of action is to
address each of the government's reasons at the time they
were offered or when additional information is developed
during voir dire.

United States v. Vann, 776 F.3d 746, 756
(10th Cir. 2015). Although the Tenth Circuit in
Vann found no need to consider whether the defendant
waived his right to a Batson challenge by raising
the issue in a perfunctory manner and then re-asserting the
same post-trial, in the instant case, Defendant made no
challenge during jury selection. This failure deprived
Plaintiffs of the ability to offer a contemporaneous
explanation for their decisions to strike Mr. Fleming and Mr.
Corless and deprived the Court of its ability to engage in
any contemporaneous fact finding. The undersigned concludes
that under these conditions, Defendant has waived the right
to assert a challenge to Plaintiffs' peremptory
challenges. See Morning v. Zapata Protein (USA),
Inc.,128 F.3d 213, 216 (4th Cir. 1997) (noting that a
Batson challenge must be exercised in a timely
manner, and failure to raise a Batson challenge
prior to the venire being excused constitutes a waiver of the
challenge). Accordingly, Defendant's motion for
new trial is denied with regard to his Batson claim.

Defendant
next argues that non-economic and punitive damages are
improper under Kansas law. Non-economic damages are actual
damages, contrary to Defendant's argument; thus, if
Plaintiffs proved they were entitled to recover on their
outrage claim, non-economic damages, such as mental pain and
suffering, are appropriate. And because non-economic damages
are actual damages, punitive damages would not be foreclosed.
Defendant also contends actual damages were not properly
supported by the evidence.

“As
a general rule, motions for a new trial should be granted
when the trial court is firmly convinced that the jury has
reached a plainly erroneous result or the verdict is a
miscarriage of justice.” 9 Moore's Federal Practice
¶ 50.06[6][a], at 50-37 (3d ed. 2016). The moving party
carries the “heavy burden of demonstrating that the
verdict was clearly, decidedly, or overwhelmingly against the
weight of the evidence.” Blanke v. Alexander,
152 F.3d 1224, 1236 (10th Cir. 1998) (quoting Campbell v.
Bartlett, 975 F.2d 1569, 1577 (10th Cir.
1992) (internal quotation marks omitted). Indeed, the award
of damages can be supported by any competent evidence tending
to sustain it. Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt.,
Inc., 295 F.3d 1065, 1076 (10th Cir. 2002) (citations
omitted). In keeping with this standard, the evidence is
construed in the light most favorable to the Plaintiffs, as
the prevailing parties. Lompe v. Sunridge Partners,
LLC, 818 F.3d 1041, 1062 (10th Cir. 2016).

The
tort of outrage under Kansas law provides for liability by a
person who, by extreme and outrageous conduct, intentionally
or recklessly causes severe emotional distress to another.
Dawson v. Associates Financial Services Co., 529
P.2d 104 (Kan. 1974). Proof of four elements is required to
establish the cause of action: (1) The conduct of defendant
must be intentional or in reckless disregard of plaintiff;
(2) the conduct must be extreme and outrageous; (3) there
must be a causal connection between defendant's conduct
and plaintiff's mental distress; and (4) plaintiff's
mental distress must be extreme and severe. Bolden v. PRC
Inc., 43 F.3d 545, 553 (10th Cir.
1994)(construing Kansas law). The Court disagrees with
Defendant's contention that he is entitled to a new trial
because the evidence was insufficient to sustain
Plaintiffs' burden. There was substantial testimony that
Plaintiffs endured years of mental torment by Defendant, who
continued to harass them despite the presence of protective
orders issued by the state court. He made repeated calls to
child welfare to lodge complaints about the Lavielle parents,
none of which officials ever substantiated as true. When the
state courts in Kansas chose not to enforce their protective
orders, the family relocated to Oklahoma, although Defendant
continued his attempts at harassment thereafter. In short,
the individual members of the Lavielle family were subjected
to Defendant's concerted effort to repeatedly disrupt
their lives, and they testified as to the emotional distress
they suffered, which the Court finds was extreme and
outrageous. Furthermore, Michael Lavielle and his wife
testified to the economic consequences of Defendant's
actions. Construing the evidence in the light most favorable
to the Plaintiffs, Defendant fails to meet his heavy burden
of establishing that the verdict should not stand. The Court
accordingly denies Defendant's Motion for New Trial.

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